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TMI Blog2023 (11) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... . ITA No. 466/Bang/2023 3. The application is barred by limitation by 102 days. An application for condonation of delay has also been filed by assessee before us on 04.07.2023. The case of the assessee is this that the order impugned was served upon the assessee on 16.01.2023 and the appeal was, therefore, due to be filed by 17.03.2023. The order was served upon one of the staff members namely Suresh Kumar Reddy G, who left the organisation and after that the order got misplaced and therefore not brought to the notice of the management for filing appeal is the explanation given by the appellant before us. Furthermore, the Managing Director was also out of station during the particular period of time. Hence the appeal could be filed on 17.03.2023 thereby causing 102 days delay. 4. It appears that sufficient cause has been explained by the assessee in preferring the appeal beyond date as mentioned above. The same seems to be genuine. Delay, therefore, is condoned. 5. The assessee has preferred the appeal with the following grounds. 6. Ground no. 1 is general in nature and thus no order needs to be passed. 7. Ground no. 2 - The Ld.AR does not want to proceed with ground no. 2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of the case made out. The Ld.DR on the other hand relied upon the order passed by the Ld.CIT(A). 10. Having heard the Ld.Counsel appearing for the parties and having regard to the facts and circumstances of the case, we in order to prevent the miscarriage of justice, find it fit and proper to remit the issue to the file of Ld.AO to adjudicate the issue afresh upon considering the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter. We also further make it clear that the assessee in that event be given an opportunity of being heard by the Ld.AO. This ground of appeal is, therefore, allowed for statistical purposes. 11. Ground no. 4 - Addition of Rs. 50,045/- u/s. 40(a)(ia) on account of non compliance with the provisions of chapter XVII-B is the subject matter before us. 12. The assessee's case is this that the receiver of the above expenditure has offered as income in its return of income for the respective financial year and thus no disallowance can be made u/s. 40(a)(ia) of the Act in the hands of the assessee. Further that the Ld.AO has not treated the assessee as 'assessee in default' u/s. 201(1) and neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 06.04.2023 causing 19 days delay. 17. From the above, it appears, that sufficient cause has been explained by the assessee in preferring the appeal beyond date. The same seems to be genuine and thus, delay is condoned. 18. The addition of Rs. 15,34,844/- u/s. 194H is the subject matter before us. 19. The brief facts leading to this issue this that the assessee filed its return of income for A.Y. 2018-19 on 28.11.2018 declaring total income at Rs. 3,67,36,490/-. The case was selected for limited scrutiny under CASS to verify the issue "verification of the genuineness of the expenses". Notices u/s. 143(2) were issued under ITBA. The assessee was further served with the notice u/s. 142(1) of the Act and the assessment ultimately was finalized upon making addition of Rs. 15,34,844/- u/s. 194H of the Act. 20. It appears that M/s. Avenue India Pvt. Ltd. and M/s. Razor Pay are gateway providers who collect fees from participants on the part of the appellant and charging commission. After returning the commission, they transfer the balance amount to the appellant. TDS is deducted u/s. 194H on commission part and not on the whole receipt and the amount of Rs. 1,32,629/- was deducted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The addition therefore, has been made only on estimation basis and thus liable to be deleted. 23. Moreso, the appellant paid Rs. 16,76,041/- and Rs. 9,76,530/- towards the gateway payment charges to the said M/s. Razor Pay and M/s. Avenue India Pvt. Ltd. and also filed reconciliation statement of commission expenses with books of accounts and the TDS returns filed by the appellant. 24. On this aspect he has relied upon the following decisions: * CIT vs Corporation Bank, High Court of Karnataka, (2021) 123 Taxmann.com 204 * PCIT vs Make My Trip (P.) Ltd., High Court of Delhi, (2019) 104 taxmann.com 263 * Inter globe Aviation Ltd vs ACIT, ITAT Delhi, (2020) 114 taxmann.com 460 * ACIT vs Head Infratech India Pvt Ltd, ITAT Hyderabad, ITA No: 2372/Hyd/2018 25. The copy of the above decisions has also been submitted before us. We find that it has been held by the Hon'ble Jurisdictional High Court that the service charges paid by the bank to National Financial Switch and Cash Tree for routing transactions of payments made by customers to the assessee bank to acquiring bank would not be liable to TDS deduction u/s. 194H of the Act. While doing so, the Hon'ble High Court has ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bothered or concerned with the quality, price, nature, quantum etc. of the goods bought/sold. The bank merely provides banking services in the form of payment and subsequently collects the payment. The amount punched in the swiping machine is credited to the account of the retailer by the acquiring bank, i.e. HDFC in this case, after retaining a small portion of the same as their charges. The banking services cannot be covered and treated as services rendered by an agent for the principal during the course of buying or selling of goods as the banker does not render any service in the nature of agency." 27. From the case in hand, we find that the parties are service providers who collect fees from participants and they collect gateway payment commission from the appellant after returning the gateway charges they transfer the balance amount collected from the participants to the appellant. 28. We find that the payments made to gateway providers are not brokerage and TDS u/s. 194H of the Act is not liable to be deducted. 29. Thus taking into consideration the entire aspect of the matter and respectfully relying on the judgment passed by the different forums, we find that in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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